Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The European Court of Justice held that a certain level of discretion is justified when it comes to disclosure of information regarding the negotiation of international agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), so as to allow mutual trust between negotiators and the development of a free and effective discussion. The Court reasoned that since, in the European Union, conducting such negotiations falls within the domain of the executive, public participation in the process is necessarily restricted. Further, such negotiations fall within the mandatory exceptions to disclosure under Article 4(1) of Regulation No 1049/2001 rather than those under Article 4(2) which can be defeated if there is an overriding public interest in disclosure.
This case analysis was contributed by Right2Info.org.
Sophie in‘t Veld, a Member of the European Parliament, submitted a request to the European Commission (the Commission) for access to a number of documents relating to the Anti-Counterfeiting Trade Agreement (ACTA). The Commission provided some of the documents, but the majority of them were either entirely or partly refused on the ground that disclosure would undermine “the protection of […] public interest as regards […] international relations” (Article 4(1)(a), third indent of Regulation No 1049/2001). Sophie in‘t Veld applied to the General Court, alleging infringement of Regulation No 1049/2001.
Firstly, the Court considered the legality of the Commission’s decision to refuse access to the EU’s position in the ACTA negotiations. The Court pointed out that the negotiation of international agreements could justify “a certain level of discretion to allow mutual trust between negotiators and the development of a free and effective discussion”. Since conducting such negotiations fell within the domain of the executive, public participation in the process was “necessarily restricted”. In the present case, the disclosure of the EU’s position could “reveal, indirectly, [the positions] of other parties to the negotiations” and negatively affect the negotiating power of the EU itself. Therefore, it could damage international relations protected by Article 4(1)(a), third indent of Regulation No 1049/2001. The Court rejected the argument of overriding public interest in disclosure and added that the exceptions under Article 4(1) are mandatory and in contrast to other exceptions to the right to access, do not make any reference to the consideration or balancing of any other interests.
Secondly, the Court discussed the refusal of particular documents. The Court considered the applicant’s plea that some of the documents (those numbered from 1 to 22) were incorporated in the consolidated draft ACTA text that was made public and that, therefore, access to those documents could no longer be restricted (para. 135). The Court disagreed, holding that ACTA negotiations were still in progress and that the disclosure of this information “would have compromised the sphere of mutual trust necessary for each of the negotiating parties to freely express its position”. Nonetheless, it said that the Commission’s refusal to disclose document 21 was unjustified, because it contained “at most a list of questions for discussion, without indirect implications [to the negotiating position of the parties]”.
The Court addressed the applicant’s claim regarding a failure to disclose documents reflecting the position of third parties in relation to the structure of ACTA and its provisions about the Internet (documents 25-29). The Court found that all but one document were covered by the international relations exception (Article 4(1)(a), third indent). Document 25, however, was an “essentially descriptive and general” document concerning the EU intellectual property law and was withheld unlawfully.
Finally, the Court considered whether the partial access to documents summarizing the negotiations undertaken during several rounds of ACTA was too restrictive. The Court found that while some of the documents’ redactions were justified under the same provision of Regulation No 1049/2001, others were not because the redacted information (in documents 45, 47, 48) “was not likely to damage the mutual trust between negotiating parties”.
Regarding the legitimately withheld documents, the Court found that the Commission provided sufficient reasons for a refusal. In particular, it complied with a duty “to state adequate reasons in decisions,” which is an essential procedural requirement distinguishable from the question of the substantive legality of the measure.
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